We mentioned the other day that the first version of the IRP law, i.e. the BC Court of Appeal decision in Sivia, is being appealed to the Supreme Court of Canada. We noted with interest that within a day or so of us mentioning this on Twitter, articles appeared in the Vancouver Sun and then journalists at Global TV reported on it.
With the old IRP law off to the Supreme Court of Canada, we wonder what the future holds. The first step is whether the Court grants leave to appeal. Cavalierly we suggested that the Court will surely grant leave to appeal because both sides have sought to appeal. Thinking about it more over the week, we’re not so sure. There is, after all, a legal test to be met. We dealt with the legal test recently when we were involved in the Murray case.
The test (or parts of it)
Supreme Court Act s.40(1) says that “where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it.”
So the issue has to be one of public importance (meaning national importance). And the importance has to be a legal question or a question of mixed law and fact. What does it mean to be of public importance?
The jurisprudence outlines some of the primary considerations. For example, if the case in question is a challenge to the constitutional validity of the legislation, the Court is more likely to grant leave to appeal. This consideration seems to favour allowing the appeal to be heard.
A pure constitutional challenge
The challenge to the first IRP law is only a constitutional challenge. It is not a fact-based case at all. Indeed, in the BC Supreme Court the factual aspect was argued at a later date, after the law was struck down (but then kept in force despite being struck down which makes no sense to us and you can read about it by following the link here).
Another of the considerations is whether the appeal puts forward a novel point of law. This can mean that the Court is being asked to consider a novel interpretation of the law, or a wholly new law itself.
A crazy new law
We think on this point as well it seems likely that leave will be granted. So much of the IRP scheme is new and crazy and utterly outside of anything we’ve seen in Canada, such as: using an ASD for punishment; lying to people and saying it’s a demand pursuant to the Criminal Code when there’s a 95% likelihood that there will be no criminal investigation; detaining people without notifying them of their detention pursuant to s. 10(a) of the Charter; taking a sample of a bodily substance without notifying the person of their s. 10(b) Right to Counsel even though you are taking the substance to punish the person; punishing people before any hearing; using a “screener” not to screen but to obtain samples to use as evidence; and all of the crappy parts of the review process, some of which were touched on in Sivia and that we deal with every day.
All of this is new and crazy, and we think really stupid, so it’s not difficult to make the case that the IRP scheme and the interpretation of the law is novel.
But it’s not a law anymore…
There is, however, one overarching issue: the old IRP law is no longer on the books. There is a second IRP law on the books, almost identical to the first, but this does seem to undermine the point that this is of national importance. The court may ask itself why it would conduct an appeal hearing for a law that isn’t on the books. And that’s a legitimate point.
Our concern is this: if the Supreme Court of Canada refuses to grant leave, most governments will view that as endorsing the decision of the BC Court of Appeal. Then the other provinces will say to themselves that this new crazy law in BC is something that they too can get away with.
People who work in Motor Vehicle Branch head offices go to conferences with others with similar jobs from other jurisdictions, and they talk on the phone and they email each other (albeit mostly they just talk about what we’re doing in our office). And you can bet that if leave isn’t granted, we will see IRP schemes being introduced in every province in short order. This has happened before, and zealous government types around the country are praying that it happens again.
Care to place a bet?
You could say that we’ve placed our bets because we’ve invested a lot into our attempt to dismantle the IRP scheme. We have a challenge underway to the second version of the scheme which is sitting in the wings, waiting for some end to the Sivia saga.
In the meantime, we’re doing very well appealing IRPs for our clients all around BC. If you have an IRP, DUI or any other driving or criminal case, call us: Vancouver 604-685-8889, Richmond 604-370-3050.